ALEXANDER HAIG, ET AL., PETITIONERS V. GLADYS BISSONETTE, ET AL.
No. 86-987
In the Supreme Court of the United States
October Term, 1986
On Writ of Certiorari to the United States Court of Appeals for the
Eighth Circuit
Brief for the Petitioners
TABLE OF CONTENTS
Opinions below
Jurisdiction
Constitutional provision and statute involved
Questions presented
Statement
Summary of argument
Argument:
A seizure is not unreasonable under the Fourth
Amendment simply because it is made in violation
of the Posse Comitatus Act
A. As a general matter, the violation of a statute,
without more, does not make a seizure unreasonable
B. In any event, a purported violation of the Posse
Comitatus Act, without more, does not give rise
to a Fourth Amendment claim under Bivens
1. The text and structure of the Posse
Comitatus Act demonstrate that the Act was not
designed to furnish a standard of reasonableness
under the Fourth Amendment
2. The history and purpose of the Posse Comitatus
Act confirm that the Act was not intended
to provide a benchmark of reasonableness
under the Fourth Amendment
3. There is no basis for the court of appeals'
belief that the Fourth Amendment incorporates
an implicit restriction on the use of
the military
Conclusion
OPINIONS BELOW
The opinion of the court of appeals en banc (Pet. App. 1a-14a) is
reported at 800 F.2d 812. The opinion of the panel (Pet. App.
15a-33a) is reported at 776 F.2d 1384. The opinion of the district
court dismissing the complaint (Pet. App. 34a-38a) is unreported. An
earlier opinion of the district court (Pet. App. 39a-58a) is reported
at 539 F. Supp. 552.
JURISDICTION
The judgment of the court of appeals en banc (Pet. App. 59a) was
entered on September 16, 1986. The petition for a writ of certiorari
was filed on December 15, 1986, and was granted on February 23, 1987.
The jurisdiction of this Court rests upon 28 U.S.C. 1254(1).
CONSTITUTIONAL PROVISION AND STATUTE INVOLVED
The Fourth Amendment to the Constitution provides in pertinent
part:
The right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated * * * .
The Posse Commitatus Act, 18 U.S.C. 1385, provides:
Whoever, except in cases and under circumstances expressly
authorized by the Constitution or Act of Congress, willfully
uses any part of the Army or the Air Force as a posse comitatus
or otherwise to execute the laws shall be fined not more than
$10,000 or imprisoned not more than two years, or both.
QUESTIONS PRESENTED
1. Whether the violation of a federal statute, without more, may
render unreasonable an otherwise reasonable seizure and thereby give
rise to a Fourth Amendment claim under Bivens v. Six Unknown Fed.
Narcotics Agents, 403 U.S. 388 (1971).
2. Whether a purported violation of the Posse Comitatus Act, 18
U.S.C. 1385, without more, gives rise to a Fourth Amendment claim
under Bivens.
STATEMENT
1. On February 27, 1973, an armed group of Indians occupied the
village of Wounded Knee, South Dakota, on the Pine Ridge Reservation.
Shortly after the occupation began, members of the Federal Bureau of
Investigation, the United States Marshals Service, and the Bureau of
Indian Affairs Police sealed off the village by establishing
roadblocks at all major entry and exit roads. The standoff between
the Indians and law enforcement authorities ended about ten weeks
later with the surrender of the Indians occupying the village. Pet.
App. 16a.
2. In February 1975, respondents, most of whom were residents of
the Pine Ridge Reservation at the time of the occupation, brought this
action in the District Court for the District of Columbia.
Respondents alleged that petitioners, who were at that time military
personnel or federal officials, had conspired to seize and assault
them and to destroy their property, in violation of several
constitutional and statutory provisions. Respondents' principal claim
was that petitioners' use of military personnel to assist the law
enforcement efforts at Wounded Knee violated the Posse Comitatus Act,
18 U.S.C. 1385, as well as a purported constitutional right -- arising
from that statute -- to be free from the use of the military in the
enforcement of civil laws. Pet. App. 17a, 40a-41a; J.A. 23-24,
34-51.
In 1981, after the case was transferred to the District of South
Dakota, petitioners moved to dismiss the complaint. They contended
that respondents had failed to state a claim, that there was a lack of
personal jurisdiction, and that the allegations in the complaint were
vague and conclusory. On May 24, 1982, the district court granted the
motion to dismiss in part, permitting respondents leave to file an
amended complaint (Pet. App. 39a-58a). The court held, first, that
all but one of the named defendants had been improperly served with
process (id. at 41a-50a). Next, the court determined that respondents
had failed to state a claim under 18 U.S.C. 2, 241, and 371, and under
the Posse Comitatus Act, 18 U.S.C. 1385, on which respondents had
"place(d) their primary reliance" (Pet. App. 51a-53a). The court
could not locate "the slightest indication of any legislative intent
to create a private cause of action" under these statutes (id. at
51a-52a). /1/ Finally, the court rejected respondents' "central"
claim (id. at 53a) to a constitutional "right to be free of the use of
the military in the enforcement of civil laws" (id. at 53a-57a). The
court held that "the mere enforcement of the law by officials who
happen to be members of the military and involving no infringement of
a citizen's recognized constitutional rights, does not present a
constitutional violation giving rise to a private cause of action"
(id. at 56a n.7). Because the respondents had alleged other
violations of their rights under the First, Fourth and Fifth
Amendments -- such as violations of their freedom of movement, right
to travel, and right of assembly -- the court did not dismiss the
complaint in full (id. at 56a). Instead, in light of the vagueness of
the complaint (id. at 57a-58a), the court granted respondents leave to
file an amended complaint within 40 days.
On July 20, 1982, respondents filed their second amended complaint.
See J.A. 1-20. In it, respondents again alleged -- as their only
claim for relief -- that petitioners had violated the Constitution by
using the military in contravention of the Posse Comitatus Act (Pet.
App. 35a; J.A. 3-12). On October 18, 1984, the district court again
dismissed the complaint (Pet. App. 34a-38a), holding that it could not
"accept the proposition that, because Congress has chosen to put
statutory limits on the actions of government officials, any act that
goes beyond these limits is thereby an automatic violation of the
Constitution" (id. at 37a). The court observed that "(j)ust as a
state may impose greater restrictions on police activity than that
required under the Constitution, so may Congress also impose greater
restrictions on the ability of the federal government to enforce laws
than are imposed on those officials by the Constitution itself"
(ibid.). Since "the Constitution itself does not prohibit the use of
the military in civil law enforcement," and since Congress -- while
limiting the role of the military in civilian life under 18 U.S.C.
1385 -- did not create "a private cause of action for violations of
that statute," then "even assuming defendants were all guilty of
Section 1385 violations, this fact provides no basis for
(respondents') claim" (Pet. App. 37a-38a).
3. The court of appeals reversed (Pet. App. 15a-33a). The court
framed the issue as "whether a search or seizure, otherwise
permissible, can be rendered unreasonable under the Fourth Amendment
because military personnel or equipment were used to accomplish those
actions" (id. at 19a). In resolving this question, the court held,
"the limits established by Congress on the use of the military for
civilian law enforcement provide a reliable guidepost by which to
evaluate the reasonableness for Fourth Amendment purposes of the
seizures and searches" (id. at 24a). In particular, the court stated,
"(respondents') Fourth Amendment case * * * must stand or fall on the
proposition that military activity in connection with the occupation
of Wounded Knee violated the Posse Comitatus Act" (id. at 26a). That
Act, the court surmised (id. at 25a-26a), is "not just any act of
Congress" but is instead "the embodiment of a long tradition of
suspicion and hostility towards the use of military force for domestic
purposes."
Relying on its previous decision in United States v. Casper, 541
F.2d 1275 (1976) (per curiam), cert. denied, 430 U.S. 970 (1977), the
court stated (Pet. App. 26a) that the Act was not violated by the
alleged use of military personnel, planes and cameras for aerial
surveillance; by reliance on military advice in dealing with the
disorder; and by the furnishing of military equipment and supplies.
/2/ The court held, however, that respondents' allegations went beyond
these limits, and included the purported involvement of military
personnel in "'maintain(ing) roadblocks and armed patrols constituting
an armed perimeter around the village of Wounded Knee'" (id. at 29a).
To that extent, the court concluded, respondents' allegations stated a
violation of the Posse Comitatus Act and thus gave rise to a Fourth
Amendment claim sufficient "to survive a motion to dismiss" (ibid.).
/3/
4. The court of appeals thereafter granted petitioners' application
for rehearing en banc (see 788 F.2d 494 (1986)), but after
supplemental briefing and argument the court divided 5-4 in upholding
the panel's decision (Pet. App. 1a-14a). The majority acknowledged
(id. at 5a) "that the Constitution is conceptually and practically
distinct from any Act of Congress, and (that) it is not the law that
any search and seizure that violates a federal statute also violates
the Fourth Amendment." The majority nevertheless viewed the Posse
Comitatus Act as "a special case" for the reasons stated in "(t)he
panel opinion" (ibid.). Observing that "Acts of Congress * * * must
be at least prima facie evidence of what society as a whole regards as
reasonable" (ibid.), the majority "adhere(d) to the decision() made by
the panel, * * * upholding as legally sufficient the Fourth Amendment
theory, to the extent that the complaint alleges a violation of the
Posse Comitatus Act" (id. at 10a). /4/
Judge Fagg, joined by three other judges, dissented (Pet. App.
11a-14a). In his view, the Posse Comitatus Act "should not be the
sole threshold consideration in determining whether an unreasonable
seizure in violation of the Fourth Amendment has occurred" (id. at
11a). As he put it (id. at 11a-12a):
To accept the court's view renders unnecessary any examination
of the circumstances or exigencies giving rise to the actions
taken or the scope, nature, or purpose for which the actions
were taken. Under the court's analysis, regardless of the lives
saved, the property protected, and the otherwise reasonable and
responsible actions of military officers seeking to assist civil
law enforcement officials, a violation of the Posse Comitatus
Act results in all other considerations becoming
constitutionally irrelevant and per se constitutes a violation
of the Fourth Amendment.
Judge Fagg agreed that "the Posse Comitatus Act rightfully seeks to
restrict military involvement in civilian affairs" (id. at 12a); but,
he added, "(t)he Constitution itself does not prohibit or restrict
such involvement" and, in this case, "(petitioners') actions were
reasonable" (ibid.). The dissent also noted that "by focusing wholly
on the Posse Comitatus Act (the majority) has created a private cause
of action not expressly or by implication authorized by Congress" (id.
at 13a). /5/
SUMMARY OF ARGUMENT
The court of appeals held that an otherwise reasonable seizure
becomes unreasonable simply because it is executed in purported
violation of the Posse Comitatus Act. Although recognizing in general
that a Fourth Amendment violation does not necessarily result whenever
a search or seizure violates a statute, the court found the Posse
Comitatus Act to be a special case, embodying "a long tradition of
suspicion and hostility towards the use of military force for domestic
purposes" (Pet. App. 25a-26a). In thus looking to the Act as "a
reliable guidepost" (id. at 24a) of reasonableness under the Fourth
Amendment, the court of appeals erred both as a matter of
constitutional and statutory law.
A. We believe that there is no statute whose violation, without
more, constitutes a per se violation of the Fourth Amendment. To the
contrary, this Court's decisions make clear that an array of
circumstances must be considered in assessing the reasonableness of a
search or seizure -- including the nature and purpose of the action
and the exigencies giving rise to it. Any while some statutes may
affect the determination of reasonableness, a statute, like the Posse
Comitatus Act, that simply allocates law enforcement responsibility
among executive agencies has no bearing at all on the determination of
reasonableness.
B. Assuming, arguendo, that a bare statutory violation may in some
cases make a seizure unreasonable under the Fourth Amendment, the
result in this case is unsupportable because the Posse Comitatus Act
does not establish standards for reasonable searches and seizures.
Indeed, the text of the Act makes a most quixotic source of Fourth
Amendment values; and the legislative history demonstrates that the
1878 Congress that passed the Act did not intend thereby to create any
restriction with constitutional implications concerning the deployment
of the military in law enforcement. While certain provisions in the
Constitution, not applicable here, deal quite explicitly with the
management and deployment of the armed forces, the Fourth Amendment,
relied on by respondents, does not. And given the historical record,
there is no reason to suppose that the Framers intended the Fourth
Amendment to incorporate a set of additional constraints on the use of
military force, not articulated in the Amendment itself.
ARGUMENT
A SEIZURE IS NOT UNREASONABLE UNDER THE FOURTH AMENDMENT SIMPLY
BECAUSE IT IS MADE IN VIOLATION OF THE POSSE COMITATUS ACT
A. As A General Matter, The Violation Of A Statute, Without More,
Does Not Make A Seizure Unreasonable
1. This Court has consistently made clear that "(t)o determine the
constitutionality of a seizure '(w)e must balance the nature and
quality of the intrusion on the individual's Fourth Amendment
interests against the importance of the governmental interests alleged
to justify the intrusion.'" Tennessee v. Garner, 471 U.S. 1, 8 (1985)
(quoting United States v. Place, 462 U.S. 696, 703 (1983)). The Court
has stressed that a "'balancing of competing interests'" is "'the key
principle of the Fourth Amendment'" (Michigan v. Summers, 452 U.S.
692, 700 n.12 (1981) (citation omitted)), and that "(c)ourts must
consider the scope of the particular intrusion, the manner in which it
is conducted, the justification for initiating it, and the place in
which it is conducted" (Bell v. Wolfish, 441 U.S. 520, 559 (1979)).
And in making these balancing judgments, courts cannot resort to "any
fixed formula" or "litmus-paper test" (United States v. Rabinowitz,
339 U.S. 56, 63 (1950); see also Go-Bart Co. v. United States, 282
U.S. 344, 357 (1931)).
2. The court of appeals applied just such a "fixed formula" in
ruling that if the involvement of the military at Wounded Knee could
be said to have violated the Posse Comitatus Act, then the purported
seizure of respondents was necessarily unreasonable under the Fourth
Amendment. More specifically, the court of appeals ignored this
Court's decisions holding that the content of the Fourth Amendment
cannot be determined simply by rote incorporation of statutory
provisions.
The Court has repeatedly rejected the contention that a Fourth
Amendment claim may be predicated, without more, upon some alleged
statutory violation. In Cooper v. California, 386 U.S. 58 (1967), for
example, the lower court had suppressed the evidence seized by police
officers from a defendant's car after they had impounded the car
following the defendant's arrest, reasoning that the officers had no
authority under the state forfeiture statute to conduct the search.
This Court rejected that conclusion, in language equally applicable to
the holding of the court of appeals in this case (386 U.S. at 61):
(T)he question here is not whether the search was authorized by
state law. The question is rather whether the search was
reasonable under the Fourth Amendment. Just as a search
authorized by state law may be an unreasonable one under that
amendment, so may a search not expressly authorized by state law
be justified as a constitutionally reasonable one." /6/
The Court in Oliver v. United States, 466 U.S. 170 (1984), likewise
refused to accept a claim to a "reasonable expectation of privacy"
under the Fourth Amendment based solely on the putative violation of
statutory law. The Court in that case held that trespass laws could
not create a Fourth Amendment privacy interest in so-called "open
fields." Trespass laws, the Court held, are not designed to protect
the same interests as the Fourth Amendment. As the Court put it (466
U.S. at 183 n.15):
(T)he common law of trespass furthers a range of interests that
have nothing to do with privacy and that would not be served by
applying the strictures of trespass law to public officers.
Criminal laws against trespass are prophylactic: they protect
against intruders who poach, steal livestock and crops, or
vandalize property. And the civil action of trespass serves the
important function of authorizing an owner to defeat claims of
prescription by asserting his own title.
Similarly, in Dow Chemical Co. v. United States, No. 84-1259 (May
19, 1986), rejecting a Fourth Amendment claim asserted by the
plaintiff, the Court held that trade secret law, as well as state tort
law governing unfair competition, "does not define the limits of the
Fourth Amendment" (slip op. 4). See also New Jersey v. T.L.O., 469
U.S. 325, 343 n.10 (1985); Oregon v. Hass, 420 U.S. 714, 719 (1975);
Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388, 393-394
& n.6 (1971); Silverman v. United States, 365 U.S. 505, 511 (1961).
/7/
Just as the Court has refused to uphold Fourth Amendment claims
solely derived from statutory violations, so too has it rejected
arguments that mere compliance with governing statutes obviates a more
probing Fourth Amendment inquiry. This Court's decision in Marshall
v. Barlow's, Inc., 436 U.S. 307 (1978), illustrates how a statute may
fall short of the constitutional mark and thus furnish an insufficient
standard for Fourth Amendment "reasonableness." In that case the Court
held that warrantless inspections of business premises under Section
8(a) of the Occupational Safety and Health Act of 1970 violated the
Fourth Amendment. The Court rejected the contention that the statute
should be upheld because it "represents a congressional construction
of the Fourth Amendment" (436 U.S. at 311). Instead, the Court
considered the historical purposes of the Warrant Clause, together
with the "specific enforcement needs and privacy guarantees" of the
statute (id. at 311-324). The simple fact that a statute authorized
the search did not ensure that the search was constitutional.
More recently, in Tennessee v. Garner, 471 U.S. 1 (1985), the Court
refused to uphold under the Fourth Amendment the use of deadly force
to effect the arrest of a fleeing felon. There again, a statute
authorized the seizing officer to use deadly force in making the
arrest. The Court nevertheless "balanc(ed) the extent of the
intrusion against the need for it" (471 U.S. at 7), holding that
"(w)here the suspect poses no immediate threat to the officer and no
threat to others, the harm resulting from failing to apprehend him
does not justify the use of deadly force to do so" (id. at 11). See
Michigan v. DeFillippo. 443 U.S. 31, 39 (1979); Torres v. Puerto
Rico, 442 U.S. 465, 471-472 (1979); United States v. Brignoni-Ponce,
422 U.S. 873, 877-878, 883-884 (1975); Almeida-Sanchez v. United
States, 413 U.S. 266, 272 (1973) ("no Act of Congress can authorize a
violation of the Constitution"); Berger v. New York, 388 U.S. 41, 44
(1967). Cf. Illinois v. Krull, No. 85-608 (Mar. 9, 1987), slip op.
14-15 n.12.
The approach of the court of appeals, in finding a statutory
provision to be a suitable proxy for the Fourth Amendment, is thus
fundamentally in conflict with this Court's jurisprudence. Statutes
are enacted for many reasons, and it cannot be assumed that they are
intended faithfully to mirror the commandment of a particular
constitutional amendment. See 31-39, infra. And even when the
legislature actually intends to provide guidance in the interpretation
of the Constitution -- absent a formal amendment through the Article V
process -- its views can only be one factor in the analysis under the
Fourth Amendment. See 15-17, infra. If the law were otherwise, the
content of constitutional provisions -- and thus the extent of
constitutional protections -- could vary widely from year to year,
depending solely on the legislation that Congress decided to enact.
Such vagaries do little to ensure that under the Fourth Amendment
"(w)herever a man may be, he is entitled to know that he will remain
free from unreasonable searches and seizures" (Katz v. United States,
389 U.S. 347, 359 (1967)). /8/
3. While a statute may not -- contrary to the mistaken assumption
of the court of appeals in this case -- supplant a thoroughgoing
Fourth Amendment analysis, some statutes clearly can and do have
implications for the balancing of competing interests. For example,
statutes may affect a person's expectation of privacy and thus bear on
whether or not he has any Fourth Amendment rights at all. See Katz v.
United States, 389 U.S. at 360 (Harlan, J., concurring). In this
connection, the Court has recognized an exception from the Warrant
Clause for "pervasively regulated business(es)" (United States v.
Biswell, 406 U.S. 311, 316 (1972)), and for "closely regulated"
industries "long subject to close supervision and inspection"
(Colonnade Catering Corp. v. United States, 397 U.S. 72, 74, 77
(1970)), on the grounds that such ongoing statutory regulation
diminishes "justifiable expectations of privacy" (Biswell, 406 U.S. at
316). See also Donovan v. Dewey, 452 U.S. 594, 603 (1981). The Court
has also held that "pervasive and continuing governmental regulation
and controls" may reduce the expectation of privacy of an automobile
operator (South Dakota v. Opperman, 428 U.S. 364, 368 (1976); see
also New York v. Class, No. 84-1181 (Feb. 25, 1986), slip op. 6-7;
Cady v. Dombrowski, 413 U.S. 433, 441-442 (1973)), and may likewise
diminish a government employee's expectation of privacy in the
workplace (see O'Connor v. Ortega, No. 85-530 (Mar. 31, 1987), slip
op. 6). /9/
The Court has also relied on statutes as evidence of what society
regards as a reasonable intrusion on individual privacy. In Donovan
v. Dewey, 452 U.S. 594 (1981), for example, the Court rejected a
Fourth Amendment challenge to the warrantless search provisions of the
Federal Mine Safety and Health Act of 1977. The Court concluded (452
U.S. at 602) that Congress had found "a substantial federal interest
in improving the health and safety conditions in the Nation's
underground and surface mines" and had "reasonably determined that
warrantless searches are necessary to further a regulatory scheme"
(id. at 600). Similarly, in United States v. Watson, 423 U.S. 411
(1976), the Court relied, in part, on a federal statute when it upheld
the authority of postal inspectors to make warrantless arrests of
felony suspects. See also Tennessee v. Garner, 471 U.S. at 15-16
("look(ing) to prevailing rules in individual jurisdictions" in
assessing the reasonableness of police procedures). In each of these
cases, however, the Court examined the competing interests of the
government and the individual, and treated the statutes in question as
evidence that informed, but was not dispositive of, the requisite
Fourth Amendment balancing inquiry. See, e.g., Garner, 471 U.S. at
9-11; Dewey, 452 U.S. at 602-606; Watson, 423 U.S. at 416-424.
4. But not every statute that limits the government's freedom to
act in a particular fashion may be said to affect a person's
expectation of privacy or furnish evidence of what society believes to
be a reasonable intrusion. Many such statutes concern matters of
internal governmental organization and housekeeping, and can only by
the most strained reasoning be said to bear in any way on an
individual's expectation of privacy. In particular, when the
government does nothing more than allocate law enforcement
responsibility among different agencies, the resulting statute, like
the Posse Comitatus Act, is simply not relevant to a court's analysis
under the Fourth Amendment.
As the Court put it in Michigan v. Tyler, 436 U.S. 499, 506 (1978),
"there is no diminution in a person's reasonable expectation of
privacy nor in the protection of the Fourth Amendment simply because
the official conducting the search wears the uniform of a firefighter
rather than a policeman * * * ." By the same token, no greater Fourth
Amendment constraints should arise by virtue of the uniform of the
seizing official. The strictures of the Fourth Amendment are "imposed
upon 'governmental action' -- that is, 'upon the activities of
sovereign authority'" (New Jersey v. T.L.O., 469 U.S. at 335 (quoting
Burdeau v. McDowell, 256 U.S. 465, 475 (1921)). How the sovereign
elects to distribute its law enforcement responsibilities among its
various agencies has no bearing on the Fourth Amendment analysis.
As we show in more detail below, pp. 20-39, infra, the Posse
Comitatus Act does nothing more than confine the deployment of the
Army and Air Force in law enforcement to cases in which they have been
expressly authorized to participate. Such an allocation of
enforcement authority cannot plausibly be said to affect an
expectation of privacy "that society is prepared to recognize as
'reasonable'" (Smith v. Maryland, 442 U.S. 735, 740 (1979), quoting
Katz v. United States, 389 U.S. at 353, 361; see also Hudson v.
Palmer, 468 U.S. 517, 525 (1984)). Nor does such an allocation
decision reflect a legislative judgment that the execution of the law
by some other official is unreasonable under the Fourth Amendment.
The government allocates enforcement responsibilities for any number
of reasons, including manpower needs, experience, and logistics. /10/
Deviations from those allocations are not "unreasonable" under the
Fourth Amendment; they may, in fact, be nothing more than
inefficient. /11/
B. In Any Event, A Purported Violation Of The Posse Comitatus Act,
Without More, Does Not Give Rise To A Fourth Amendment Claim Under
Bivens
Even if the violation of certain statutes could, in some cases,
render a seizure unreasonable under the Fourth Amendment, the Posse
Comitatus Act is not such a statute. /12/ The language and structure
of the Act and its interaction with related provisions make the Act a
most unlikely, and highly erratic, source of constitutional values.
Moreover, the legislative history does not support the court of
appeals' belief that the Act reflects a "tradition of suspicion and
hostility towards the use of military force for domestic purposes"
(Pet. App. 25a-26a). Finally, there is no support for the court's
unarticulated premise that the Fourth Amendment incorporates unique
restrictions on the use of the military in domestic law enforcement.
1. The Text And Structure Of The Posse Comitatus Act Demonstrate That
The Act Was Not Designed To Furnish A Standard Of Reasonableness Under
The Fourth Amendment
a. The Posse Comitatus Act forbids persons from "willfully us(ing)
any part of the Army or the Air Force as a posse comitatus or
otherwise to execute the laws" except "in cases and under
circumstances expressly authorized by the Constitution or Act of
Congress." 18 U.S.C. 1385. /13/ By its terms, the Act does not
address the reasonableness of searches and seizures under the Fourth
Amendment. The Act simply restricts the use of certain branches of
the armed services to "execute the laws." Indeed, it does so in a
hit-and-miss fashion, explicitly applying only to the Army and the Air
Force. It does not apply to the Coast Guard at all (see United States
v. Chaparro-Almeida, 679 F.2d 423, 425 (5th Cir. 1982), cert. denied,
459 U.S. 1156 (1983); Posse Comitatus Act: Hearing on H.R. 3519
Before The Subcomm. on Crime of the House Comm. on the Judiciary, 97th
Cong., 1st Sess. 48-49 (1981) (hereinafter Posse Comitatus Hearings)),
/14/ and covers the Navy and Marines only "as a matter of (Department
of Defense) policy, with such exceptions as may be provided * * * on a
case-by-case basis" (32 C.F.R. 213.10(c); see United States v.
Walden, 490 F.2d at 374-375)). Moreover, under the complex array of
interlocking statutes and regulations that govern, it appears that the
Act does not apply to the National Guard at all. /15/
It is hard to fathom how such a statute could possibly supply, as
the court of appeals supposed, "a reliable guidepost" of
reasonableness within the meaning of the Fourth Amendment. Whether a
seizure is reasonable should not depend on whether it is attributed to
a soldier or to a Marine. Cf. High, The Marine Corps and Crowd
Control: Training and Experience in Bayonets in the Streets 113, 132
(R. Higham ed. 1969) (noting that the Marine Corps' "crowd control"
and "police work" procedures "are taken from appropriate Army
manuals"). Nor can the reasonableness of a search turn on whether the
regular Army or a member of the federalized National Guard executes
it.
b. Beyond this, the Act does not apply at all to "cases and * * *
circumstances" in which the use of the Army or Air Force has been
"expressly authorized by * * * Act of Congress"; and that exception
confirms that the statute was not designed to provide a reliable
benchmark of Fourth Amendment values. /16/ Congress can entirely
alter the scope of the Posse Comitatus Act -- by either expanding or
contracting the number of "express" authorizations for military
participation in domestic law enforcement. And only historical
accident can explain many of the disparate authorizations that in fact
have been made. See generally 32 C.F.R. 213.10(a)(2)(iv) (listing
various statutes under which use of the military to execute laws is
expressly authorized).
For example, there are a number of statutes authorizing the
military to protect certain lands. Thus, Congress has authorized the
military to remove trespassers from Indian reservations (25 U.S.C.
180), and to remove unlawful enclosures from public lands (43 U.S.C.
1065). It has also authorized the use of military force to protect
the rights of discoverers of guano islands (48 U.S.C. 1418), and has
likewise extended the "anachronis(tic)" (Note, supra, 83 Yale L.J. at
138 n.60) authority to employ military force to protect isolated
parcels of federal property (see 16 U.S.C. 593 (authorizing the use of
military force to protect federal timber lands in Florida); 16 U.S.C.
23 and 78 (authorizing the use of the Army to remove trespassers from
certain specified national parks)). /17/
In addition to such specific statutory authorizations, in 10 U.S.C.
331-334 Congress has provided a more "sweeping authority to quell
domestic insurrection through employment of Federal troops." Note, The
Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.
Crim. L. Rev. 703, 714 n.63 (1976). Under these provisions, military
force may be used "(w)henever" a State requests aid "to suppress (an)
insurrection" (10 U.S.C. 331); "(w)henever the President considers *
* * it impracticable to enforce the laws of the United States * * * by
the ordinary course of judicial proceedings" (10 U.S.C. 332); and
whenever the President "considers (it) necessary to suppress * * *
domestic violence" affecting a "right, privilege, immunity, or
protection named in the Constitution and secured by law" or, simply,
violence that "opposes or obstructs the execution of the laws of the
United States" (10 U.S.C. 333). These provisions, which are derived
from statutes enacted at virtually the same time as the Fourth
Amendment, /18/ essentially authorize the use of the Army whenever the
President considers it necessary. Except for the requirement in
Section 331 that a State must formally request federal assistance, the
only restriction on the President's authority under Sections 331-333
is that "(w)henever the President considers it necessary to use the
militia or the armed forces (thereunder), he shall, by proclamation,
immediately order the insurgents to disperse and retire peaceably to
their abodes within a limited time" (10 U.S.C. 334). Because the
determination of necessity "belongs exclusively to the (P)resident,
and * * * his decision is conclusive upon all other persons" (Martin
v. Mott, 25 U.S. (12 Wheat.) 19, 30 (1827); see also Luther v.
Borden, 48 U.S. (7 How.) 1, 43-45 (1849)), issuance of a proclamation
is ultimately all that distinguishes authorized action from a possibly
unauthorized use of military force.
c. Congress revisited the Posse Comitatus Act most recently when,
as part of the Department of Defense Authorization Act of 1982, Pub.
L. No. 97-86, Tit. IX, Section 905, 95 Stat. 1114-1116, it enacted
legislation intended to "clarify authority for cooperation between
military and civilian law enforcement officials." H.R. Conf. Rep.
97-311, 97th Cong., 1st Sess. 119 (1981). Codified at 10 U.S.C.
371-378, this legislation is the most recent evidence of Congress's
unfettered power, and obvious willingness, to alter the reach of the
Posse Comitatus Act. Moreover, in enacting this legislation Congress
explicitly considered and rejected the view -- embraced by the court
of appeals in this case -- that the Posse Comitatus Act embodies a
constitutional limitation on the use of the military to enforce the
law. See generally Note, supra, 54 Geo. Wash. L. Rev. at 416-425.
/19/
The 1982 legislation has four principal sections. Sections 371 and
372 authorize the Secretary of Defense to make available to federal,
state, and local law enforcement agencies information, equipment, and
facilities belonging to the military. Section 373 authorizes the
Secretary to assign members of the military to train law enforcement
officials in the operation and maintenance of equipment furnished
under Section 372. Finally, Section 374 authorizes the Secretary,
upon two conditions, to assign military personnel to operate equipment
that has been furnished under Section 372. First, the equipment must
be used "with respect to" violations of certain federal criminal laws
(notably, narcotics violations); and second, the equipment must be
used only "for monitoring and communicating the movement of air and
sea traffic." Beyond this, Section 374 provides that in "emergency
circumstances" military personnel may operate the equipment outside
the United States "as a base of operations" to enforce the specified
criminal statutes, provided that the equipment is not used "to
interdict or to interrupt the passage of vessels or aircraft."
Before its enactment, opponents of the proposed legislation made
the very argument adopted by the court of appeals in this case -- that
the bill was at odds with the Posse Comitatus Act and transgressed
constitutional limitations on the "role for the military in civilian
law enforcement" (H.R. Rep. 97-71, 97th Cong., 1st Sess. Pt. 2, at
18-19 (1981) (Rep. Conyers); see also Posse Comitatus Hearings at
34-47 (testimony and statement of Christopher H. Pyle)).
Representative Edwards, for example, asserted that "rather important *
* * constitutional right(s)" were at stake and opposed the bill
because, in his view, it would "profoundly affect the traditional
separation of the military from routine civilian law enforcement" (127
Cong. Rec. 15667 (1981)). Representative Bethune argued against
"rushing pellmell to do away with a hundred-year-old rule of law" --
the Posse Comitatus Act -- which he believed "might even be in the
nature of a constitutional right approximating that of separation of
church and state" (id. at 15665). /20/ And Representative Conyers
contended that it would be unconstitutional to restrict the coverage
of the Posse Comitatus Act because "to change this 100-year-old law
that has admitted constitutional sacredness" would be "tampering with
the Constitution" (id. at 15682). /21/ See also id. at 15679 (Rep.
Jacobs); id. at 15682 (Rep. Chisholm); id. at 15687 (Rep. Dellums);
id. at 15688 (Rep. Gonzalez).
But Congress ultimately rejected the claim that the Posse Comitatus
Act has constitutional stature and thus should not be amended.
Choosing deliberately to make a "departure from the current
strictures" of the Act (H.R. Rep. 97-71, supra, Pt. 2, at 12),
Congress concluded that the Posse Comitatus Act was a "sufficiently
ambiguous" precedent (id. at 3), whose "age * * * and * * * rather
vague legislative history" required clarification (S. Rep. 97-58, 97th
Cong., 1st Sess. 148 (1981)). /22/ Supporters of the 1982 legislation
never doubted that a change in the Posse Comitatus Act would be
lawful. As Senator Nunn put it, the "number of other * * * exceptions
to the doctrine of posse comitatus" demonstrates that "(w)here the
need for military assistance has presented itself with full force,
Congress has in the past seen to it that limited assistance has been
forthcoming" (id. at 2003). Accord, id. at 2006 (Sen. Sasser).
In short, while Congress acknowledged a "long tradition of
separating the military from day to day involvement in the execution
and operation of the civilian laws" (H.R. Rep. 97-71, supra, Pt. 2, at
11), the consensus of its members was that "Congress passed (the Posse
Comitatus Act)" and could "certainly amend it today to deal with the
(drug trafficking) problem" (127 Cong. Rec. 15680 (1981) (Rep.
Evans)). As Congressman Sawyer stated (id. at 15686), "there is in
fact no constitutional problem at all. This is strictly * * * a
problem of changing an old law." Congress passed the 1982 legislation
-- and thus restricted the reach of the Posse Comitatus Act -- because
it determined that there were good policy reasons to do so. /23/ It
considered, but rejected, the contention that the Posse Comitatus Act
embodies constitutional norms and thus cannot be altered. /24/
2. The History And Purpose Of The Posse Comitatus Act Confirm That
The Act Was Not Intended To Provide A Benchmark Of Reasonableness
Under The Fourth Amendment
The court of appeals' assertion that the Posse Comitatus Act is
"the embodiment of a long tradition of suspicion and hostility towards
the use of military force for domestic purposes" (Pet. App. 25a-26a),
is not borne out by the history of the Act. The Posse Comitatus Act
was not passed to remove the military from law enforcement. Indeed,
members of Congress repeatedly acknowledged that the military plays a
legitimate role in law enforcement. Congress insisted, however, that
the legislature should determine what role the military was to serve,
and thus provided that the military could only be deployed in law
enforcement when "expressly authorized" by the Constitution or by an
act of Congress.
a. The Posse Comitatus Act originated as a rider to an Army
appropriations bill, offered during the Forty-fifth Congress on May
20, 1878. /25/ In its initial guise, the rider provided that "it
shall not be lawful to use any part of the land or naval forces of the
United States to execute the laws either as a posse comitatus or
otherwise, except in such cases as may be expressly authorized by act
of Congress." 7 Cong. Rec. 3586 (1878). Supporters defended the
proposed amendment on various grounds. In his introductory remarks,
Representative Kimmel, the sponsor of the bill, denounced the use of
standing armies and stated a preference for state militia. See id. at
3579-3586. /26/ Other supporters suggested different rationales.
Some voiced general opposition to the use of federal soldiers to
enforce Reconstruction (see, e.g., 7 Cong. Rec. 3536 (1878) (Rep.
Hewitt); id. at 3677-3679 (Rep. Southard)), and, in particular, to
using the Army to uphold "carpetbag" governments in South Carolina and
Louisiana (see id. at 3677-3679 (Rep. Southard); id. at 3850 (Rep.
Ellis)). Some objected to a recent suggestion of the Secretary of War
that the Army was in effect a "national police" force (see id. at
3717-3718 (Rep. Ellis)). Still other members debated the propriety of
using federal troops to control strike-related violence. Compare,
e.g., id. at 3538 (Rep. Hewitt); id. at 3634 (Rep. Butler); id. at
3677 (Rep. Durham); id. at 3679 (Rep. Wright); id. at 3682-3683
(Rep. Cobb); id. at 3735 (Rep. Hardenbergh) with id. at 3618 (Rep.
Caldwell); id. at 3636-3637 (Rep. Garfield).
Kimmel's formulation of the Posse Comitatus amendment, however, did
not survive debate on the floor. The House adopted instead a narrower
appropriations rider, restricted solely to the deployment of the Army.
/27/ Proposed by Representative Knott, this rider provided (7 Cong.
Rec. 3845 (1878)):
From and after the passage of this act it shall not be lawful to
employ any part of the Army of the United States as a posse
comitatus or otherwise under the pretext or for the purpose of
executing the laws, except in such cases and under such
circumstances as such employment of said force may be expressly
authorized by act of Congress. /28/
In contrast to the arguments advanced in support of the Kimmel
rider, Knott and his supporters did not view this amendment as an
effort to curb the use of federal military force in law enforcement.
Indeed, Knott conceded that "the military arm of the Government may be
invoked for enforcing the civil laws" (7 Cong. Rec. 3846 (1878)). He
observed, moreover, that there were "particular cases in which
Congress has provided that the Army may be used, which this bill does
not militate against, such as the case of the neutrality laws, the
enforcement of the collection of customs duties and of the
civil-rights bill, and one or two other instances" (id. at 3849).
The Knott rider was designed instead to assert congressional
control over the deployment of the Army to enforce the law. As one of
its chief proponents put it, the rider was intended "to enable the
legislative department of the Government alone to say in what mode and
manner the Army raised, equipped, provisioned, and paid by the
legislative department of the Government according to the provisions
of law shall be used" (7 Cong. Rec. 3845 (1878) (Rep. Hooker)). See
also id. at 3846-3847 (Rep. Knott); id. at 3851 (Rep. Tucker).
Disclaiming any intention to make unlawful "(w)hatever it is lawful
for an officer or a soldier of the Army to do as the law now exists"
(ibid. (Rep. Herbert)), supporters simply denounced past instances in
which the Army allegedly had been employed "under the pretext of
enforcing the laws without one scintilla of authority to be found in
any enactment of Congress" (id. at 3846 (Rep. Knott)).
What particularly troubled supporters of the Knott rider -- and
what accounts for the name of the Act today -- was an 1854 opinion of
the Attorney General advising federal marshals that they were entitled
to summon the assistance of the entire "posse comitatus," including
"the military of all denominations" (7 Cong. Rec. 3850 (1878) (Rep.
Southard)). See 6 Op. Att'y Gen. 466 (1854). "(T)his amendment,"
Knott declared, "is designed to put a stop to the practice, which has
become fearfully common, of military officers of every grade answering
the call of every marshal and deputy marshal to aid in the enforcement
of the laws" (id. at 3849). "(I)t is to prevent a recurrence of this
usurpation of authority * * * that this amendment is proposed," Knott
stated (id. at 3847).
Over objections that Knott's proposal was a "purely partisan"
attempt to embarrass the President (7 Cong. Rec. 3851-3852 (1878)
(Rep. Gardner)), the Knott amendment was adopted by the House in an
almost strictly party-line vote. See id. at 3852, 3877; see
generally Siemer & Effron, Military Participation in United States Law
Enforcement Activities Overseas: The Extraterritorial Effect of the
Posse Comitatus Act, 54 St. John's L. Rev. 1, 29-35 & n.140 (1979).
b. In the Senate, the proposal to attach Representative Knott's
amendment to the Army appropriations bill was sponsored by Senators
Kernan and Bayard. 7 Cong. Rec. 4239-4240 (1878). /29/ When he
introduced the rider, Senator Kernan made clear that it was not
intended to prevent the deployment of the Army for law enforcement
purposes but only to assert the authority of Congress over how the
Army was used. As in the House debate, the focus of Kernan's concern
was the Attorney General's instruction to the marshals that they were
free to use the Army when they deemed that circumstances required (id.
at 4240). As he put it (ibid.), under the proposed amendment "there
shall be no right to use the Army as a posse comitatus by the peace
officers of the State or of the General Government unless there is
some statutory or constitutional provision that expressly authorizes
it."
Senator Beck, a supporter of the bill, acknowledged that the
amendment did not "seek to change" those statutes -- including "the
civil-rights bill" and "two or three other statutes of that sort" --
under which there was existing authority "to call upon the Army" (7
Cong. Rec. 4240 (1878)). Beck insisted that "the whole object of this
section * * * (was) to limit the use by the marshals of the Army to
cases where by law they are authorized to call for them, and not to
assume that they are in any sense a posse comitatus to be called upon
when there is no authority given them to call upon anything but the
posse comitatus" (id. at 4241). See also id. at 4242 (Sen. Kernan).
/30/ In short, Senator Bayard observed, "the naked proposition was
this" (id. at 4301):
(T)hat the Army of the United States was the creature of the
Constitution and laws of the United States, that it should not
be used except in accordance with the laws of its being, and
that he who uses it otherwise than the law and the Constitution
permitted should be answerable. That was all. That is what the
section means. /31/
The Senate accepted the Posse Comitatus rider only after first
making both of the changes initially proposed by Kernan and Bayard,
see p. 36 n.29, supra as well as deleting the requirement that
congressional authorization be given "expressly," see p. 34, supra. 7
Cong. Rec. 4302 (1878). In addition, the Senate amended the proposal
so as to prohibit only the "willful" use of the Army without
authority, and it struck altogether the provision establishing
criminal penalties. Id. at 4302, 4304.
c. The final version of the Posse Comitatus Act was negotiated in
conference. The House ultimately agreed to accept all of the Senate's
changes in language, insisting only that the criminal penalties and
the word "expressly" be restored. 7 Cong. Rec. 4647-4648 (1878).
Reporting this compromise back to their respective chambers, the House
conferees claimed that the Act confirmed "the great principle that the
Army of the United States in time of peace should be under the control
of Congress and obedient to its laws" (id. at 4686 (Rep. Hewitt)),
while the Senate conferees asserted that "the Executive would not be
embarrassed by the prohibition of Congress" because "if the power (to
use the Army) arises under either the Constitution or the laws it may
be exercised" (id. at 4648 (Sen. Sargent)).
d. This legislative history does not bear out the court of appeals'
extravagant assertion that the Posse Comitatus Act was "the embodiment
of a long tradition of suspicion and hostility towards the use of
military force for domestic purposes" (Pet. App. 25a-26a). The
enacting Congress appears to have intended the Act simply as an
assertion of congressional control over the military. It manifestly
did not intend to eliminate the military's law enforcement functions;
still less did it intend to create a constitutional standard of
reasonable searches and seizures. Because the court of appeals
misread this historical record, it incorporated into the Fourth
Amendment a statute that was never meant by its framers to serve such
an elevated function.
3. There Is No Basis For The Court Of Appeals' Belief That The
Fourth Amendment Incorporates An Implicit Restriction On The Use Of
The Military
The court of appeals' decision to read into the Fourth Amendment
the supposed content of the Posse Comitatus Act is wrong not only in
its misreading of that statute, but in its unarticulated premise that
the Fourth Amendment imposes implicit limitations on the role of the
military. For two reasons, this premise cannot be sustained. First,
the Constitution contains express rules governing the role and control
of the military, and there is no reason to suppose that the Fourth
Amendment was designed to impose additional constraints not mentioned
in, or fairly implied by, the other, more explicit provisions.
Second, the routine deployment of the military to assist in law
enforcement at the time that the Fourth Amendment was passed
undermines any suggestion that the Amendment imposes, sub silentio,
restrictions on how the military may be used.
a. By its terms, the Fourth Amendment says nothing at all about the
role of the military in the enforcement of civilian law. Other
portions of the Constitution, by contrast, deal quite explicitly with
how the military shall be organized, managed, and deployed. Article
II, Section 2, Clause 1, provides that the President shall be
"Commander in Chief of the Army and Navy of the United States, and of
the militia * * * when called into the actual Service of the United
States." Article I, Section 8, Clauses 14 and 16, provide that
Congress shall "make Rules for the Government and Regulation of the
land and naval Forces" as well as for "such Part of (the Militia) as
may be employed in the Service of the United States." These
provisions, which commit the basic questions about the governance and
role of the military to the political branches, are supplemented by
Article I, Section 8, Clause 12, which prohibits making appropriations
"for a longer Term than two Years" and which was conceived as the
"best guard" against "a military Gov(ernmen)t" (2 The Records of the
Federal Convention of 1787, at 330 (M. Farrand ed. 1966) (hereinafter
Farrand)). See also The Federalist No. XLI, in The Complete Madison
114 (S. Padover ed. 1953). Finally, in the only constitutional
restriction on the role of the military that is "particularly valuable
to individuals" (2 H. Storing, The Complete Anti-Federalist Paragraph
2.8.202, at 329 (1981)), the Third Amendment generally prohibits the
quartering of soldiers in any house without the consent of the owner.
The court of appeals acknowledged these constitutional limitations
on the role of the military in civilian affairs (Pet. App. 21a), and
it did not suggest that the purported use of the military in the
present case offends any of these express provisions. Nor could such
a claim have plausibly been made. Apart from the Third Amendment,
which is plainly not in issue, the Constitution affirmatively leaves
decisions about the deployment of the military to the political
branches. Nowhere other than in the Third Amendment does the
Constitution prescribe how the military may be used, and there is no
reason why the Fourth Amendment should be thought silently to
incorporate restrictions that were not included in the other, quite
explicit portions of the Constitution.
b. As this Court observed in Carroll v. United States, 267 U.S.
132, 149 (1925), "(t)he Fourth Amendment is to be construed in the
light of what was deemed an unreasonable search and seizure when it
was adopted * * * ." Accord, United States v. Villamonte-Marquez, 462
U.S. 579, 585-587 (1983); United States v. Ramsey, 431 U.S. 606,
616-619 & n.14 (1977). The historical setting in which the Fourth
Amendment was adopted confirms that the Amendment was not designed
implicitly to incorporate restrictions on the use of the military to
enforce the law.
It was well understood by the Framers that the military was freely
available to assist in law enforcement. During the debates in the
1788 Virginia ratifying convention, Madison was asked why Article I,
Section 8, Clause 15 authorizes Congress to "provide for calling forth
the Militia to execute the Laws of the Union." /32/ Madison stated
that "the reasons (are) obvious * * * . If resistance should be made
to the execution of the laws * * * it ought to be overcome." 3 Farrand
318. Moreover, in The Federalist No. XXVIII, Hamilton observed that
whether the army or the militia is used "to maintain the just
authority of the laws" depends solely on how strong a force the
situation requires. Defending the necessity of organizing a strong
militia (The Complete Madison 47-48 (S. Padover ed. 1953)), Madison
asked the Virginia convention, "How is it possible to answer
objections against possibility of abuses?"
It must strike every logical reasoner, that these (abuses)
cannot be entirely provided against. I really thought that the
objections to the militia (were) at an end. Was there ever a
constitution, in which, if authority was vested, it must not
have been executed by force, if resisted? Was it not in the
contemplation of this state, when contemptuous proceedings were
expected, to recur to something of this kind? How is it
possible to have a more proper resource than this? That the
laws of every country ought to be executed, cannot be denied.
That force must be used if necessary, cannot be denied. Can any
government be established, that will answer any purpose
whatever, unless force be provided for executing its laws?
Indeed, in its first session Congress immediately introduced, and
later enacted, a bill recognizing the military establishment of
October 3, 1787, and authorizing the President to call whatever part
of the militia that he thought necessary to protect the frontier from
Indian incursions. 1 Stat. 95 (cited in F. Wilson, Federal Aid in
Domestic Disturbances 25 (1922)). Thereafter, on May 2, 1792, the
Second Congress enacted a bill entitled "An act to provide for calling
forth the militia to execute the laws of the Union, suppress
insurrections and repel invasions" (1 Stat. 264 (quoted in F. Wilson,
supra, at 25)). In 1795 Congress replaced this Act with an even
broader grant of authority to the President, permitting him to use the
militia to enforce the law without advice from Congress or from the
Judiciary (1 Stat. 424 (cited in F. Wilson, supra, at 34, and G.
Fabiano, The Analysis and Interpretation of the Use of Presidential
Authority to Order United States Armed Forces into Military Action to
Quell Domestic Disturbances 56 (1962)). See also p. 25 n.18, supra.
Thus, in 1794, President Washington could rely on express statutory
authority to send troops to suppress the Whiskey Rebellion. See F.
Wilson, supra, at 26-33; B. Rich, The Presidents and Civil Disorder
2-20 (1941); G. Fabiano, supra, at 46-52. Troops were again called
upon to restore domestic order in Fries's Insurrection in 1799, to
arrest the Burr conspirators in 1807, and to enforce the Embargo in
1808. See F. Wilson, supra, at 34-44. Indeed, as part of the Embargo
Act, Congress formally authorized the President "to employ * * * such
part of the land or naval force of the United States * * * as shall be
judged necessary * * * for the purpose of suppressing * * * all cases
of insurrection or obstruction to the laws * * * " (Act of Mar. 3,
1807, ch. 39, 2 Stat. 443 (cited in G. Fabiano, supra, at 63-64)).
On this historical record, it is hard to imagine that the Framers
intended the Fourth Amendment to impose a set of unstated restrictions
on the use of the military. /33/ The court of appeals in the present
case thought otherwise, electing to read into the Amendment the terms
and conditions that Congress provided in the Posse Comitatus Act
nearly 100 years after the adoption of the Fourth Amendment. The
Constitution cannot abide such freewheeling and ahistorical use of
congressional enactments.
CONCLUSION
The judgment of the court of appeals should be reversed.
Respectfully submitted.
CHARLES FRIED
Solicitor General
RICHARD K. WILLARD
Assistant Attorney General
DONALD B. AYER
Deputy Solicitor General
LAWRENCE S. ROBBINS
Assistant to the Solicitor General
BARBARA L. HERWIG
MARC JOHNSTON
Attorneys
MAY 1987
/1/ As to the claims under 18 U.S.C. 241 and 371, the district
court cited authority rejecting assertions of a civil damage remedy.
E.g., Fiorino v. Turner, 476 F. Supp. 962, 963 (D. Mass. 1979). The
court said it had found no such direct authority concerning the
question of a private right of action under 18 U.S.C. 2 and 1385.
/2/ To the extent that respondents based their Fourth Amendment
claim on these purported actions by the military, the court upheld the
district court's dismissal (Pet. App. 29a-30a). The court of appeals
stated (ibid.) that "this sort of activity does not violate the Posse
Comitatus Act * * * (and) is therefore not 'unreasonable' for Fourth
Amendment purposes."
/3/ The court rejected respondents' claims under the Due Process
Clause of the Fifth Amendment, finding "no clear support for the novel
theory" that there can be a "due-process violation by reason of the
mere fact that the confinement and other deprivations inflicted upon
(respondents) derived from military action instead of civilian" (Pet.
App. 30a). Still, the court noted, it was "reinforced" in its
decision to uphold the dismissal of those claims "by the knowledge
that all of the proof relevant under such a theory will still come in
if and when the Fourth Amendment search-and-seizure theory goes to
trial. In other words, (respondents) do not really need the
due-process theory in order to secure relief here, the Court having
already held that an unauthorized action by a military officer can be
'unreasonable' under the Fourth Amendment even though the same thing,
if done by a civilian official, would not." Id. at 32a. The court
also declined to reach, on the present record, petitioners' claims
that they were not properly served and that the action was barred by
the statute of limitations (ibid.).
/4/ The court also held that on remand petitioners might be able to
establish defenses of either absolute or qualified immunity (Pet. App.
3a), or demonstrate that their conduct was exempted by Congress from
the reach of the Posse Comitatus Act by other legislation (id. at
3a-4a). In addition, the court refused to reconsider the panel's
holding that "indirect or passive military involvement, such as aerial
surveillance and the furnishing of materials and supplies," does not
violate the Posse Comitatus Act and therefore states no Fourth
Amendment claim (id. at 10a).
/5/ Judge Fagg found it "truly ironic that military officials who
responded to requests for assistance by civilian authorities and who
in the face of an armed uprising acted not to subvert but to preserve
and protect the Constitution and restore civilian rule now face
substantial monetary liability" (Pet. App. 13a).
/6/ Accord, Sibron v. New York, 392 U.S. 40, 59-62 (1968).
/7/ The simple violation of an agency regulation likewise has been
held not to give rise to a constitutional claim. In United States v.
Caceres, 440 U.S. 741 (1979), the defendant sought to suppress certain
tape-recorded conversations between an I.R.S. agent and himself that
were offered at his bribery trial. Defendant contended that the agent
had failed to secure authority to record the conversations, thus
violating agency regulations. This Court reversed an order
suppressing the evidence, holding that "none of respondent's
constitutional rights has been violated" (440 U.S. at 755), and that
application of the exclusionary rule in this context might well "have
a serious deterrent impact on the formulation of additional standards
to govern prosecutorial and police procedures" (id. at 755-756).
/8/ Measuring the content of the Fourth Amendment solely by the
terms of a statute leads to the further anomaly that even where the
statute creates no private right of action for a violation, the Fourth
Amendment will automatically provide one. The latter anomaly is
especially striking in this case, since respondents have expressly
renounced the claim that there is a private right of action under the
Posse Comitatus Act. See Pet. App. 17a & n.3.
/9/ Cf. Illinois v. Krull, No. 85-608 (Mar. 9, 1987) (The
exclusionary rule does not apply to police officers who act in
reasonable reliance upon a statute authorizing warrantless
administrative searches).
/10/ To be sure, the government may sometimes allocate law
enforcement responsibility because of a view of the "propriety or
desirability, from a policy standpoint," of assigning a given role to
a particular agency (Laird v. Tatum, 408 U.S. 1, 15 (1972)). The
Posse Comitatus Act, for one, may arguably reflect such policy
concerns. But a legislative judgment about what "policies" are most
"desirable" in parcelling out the government's functions must not be
confused with the constitutional judgment about what limits should be
imposed on government actions. The court of appeals indulged
precisely that confusion in elevating the policy judgments embodied in
the Posse Comitatus Act to the stature of constitutional doctrine.
/11/ The court of appeals is not alone in ignoring the fact that
the Fourth Amendment is addressed to the reasonableness of searches,
and not the identity of searchers. In a series of analogous cases,
the Ninth Circuit has held that the use of Department of Commerce
agents (United States v. Whiting, 781 F.2d 692 (1986)), or agents of
the F.B.I. (United States v. Soto-Soto, 598 F.2d 545, 550 (1979)), in
executing border searches makes those searches unreasonable under the
Fourth Amendment. None of those cases explains why the government's
decision to assign border search responsibility to Customs -- rather
than to Commerce or the F.B.I. -- makes a search conducted by those
other agencies necessarily unreasonable.
/12/ The court of appeals' reliance on the Posse Comitatus Act is
at odds with decisions of the other circuits, which have uniformly
rejected analogous claims in the context of criminal prosecutions.
See, e.g., United States v. Griley, No. 85-5551 (4th Cir. Mar. 26,
1987), slip op. 19-21; United States v. Hartley, 796 F.2d 112,
114-115 (5th Cir. 1986); United States v. Roberts, 779 F.2d 565,
566-568 (9th Cir. 1986), cert. denied, No. 85-7057 (Oct. 6, 1986);
United States v. Hartley, 678 F.2d 961, 977-978 (11th Cir. 1982),
certs. denied, 459 U.S. 1170 and 459 U.S. 1183 (1983); United States
v. Wolffs, 594 F.2d 77, 84-85 (5th Cir. 1979); United States v.
Walden, 490 F.2d 372 (4th Cir.), cert. denied, 416 U.S. 983 (1974).
The state courts have likewise roundly rejected claims under the Act.
See, e.g., People v. Hayes, 144 Ill. App. 3d 696, 98 Ill. Dec. 911,
494 N.E.2d 1238, 1240-1241 (1986); State v. Nelson, 298 N.C. 573,
584-585, 260 S.E.2d 629, 639 (1979); State v. Danko, 219 Kan. 490,
497-498, 548 P.2d 819, 825 (1976) (the Posse Comitatus Act "expresses
a policy that is for the benefit of the people as a whole, rather than
a policy which could be characterized as designed to protect the
personal rights of individual citizens as declared in the Fourth
Amendment").
Even in the one case that we know of in which evidence was
ultimately suppressed under the Posse Comitatus Act, the court made
clear that "the potential abuses of the Act obviously are not of the
same magnitude, neither qualitatively nor quantitatively, as
violations under the Fourth Amendment," and held that "(v)iolations of
Section 1385 do not necessitate an automatic invocation of an
exclusionary rule." Taylor v. State, 645 P.2d 522, 524 (Okla. Crim.
App. 1982). See also Harker v. State, 663 P.2d 932, 934-935 (Alaska
1983) (holding that exclusion might be appropriate under a state rule
of evidence, as opposed to on constitutional grounds, but declining to
decide question because Posse Comitatus Act was not violated). See
generally Note, Fourth Amendment and Posse Comitatus Act Restrictions
on Military Involvement in Civil Law Enforcement, 54 Geo. Wash. L.
Rev. 403 (1986): Note, The Posse Comitatus Act as an Exclusionary
Rule: Is The Criminal to Go Free Because the Soldier Has Blundered?,
61 N. Dak. L. Rev. 107 (1985).
/13/ The phrase "posse comitatus" is derived from the early common
law and refers to the entire population of a county, above the age of
15, from whom the sheriff may draw to aid him in the execution or
enforcement of the law. See Black's Law Dictionary 1324 (4th ed.
1968). See p. 35, infra.
/14/ This is true, even though "(t)he Coast Guard * * * is a
military service, and an important branch of the armed services"
(United States v. Johnson, No. 85-2039 (May 18, 1987), slip op. 10
n.12).
/15/ By law, the National Guard is not part of the Army or Air
Force except when it has been ordered into active federal service.
See 10 U.S.C. 3078, 3079, 3495 (Army National Guard); 10 U.S.C. 8078,
8079, 8495 (Air National Guard). When it is not in federal service,
the National Guard is controlled by the states (see Maryland v. United
States, 381 U.S. 41, 46-47 (1965)); and, despite the fact that the
Guard's organization, training and equipment are fully coordinated
with those of the federal armed forces, the Posse Comitatus Act does
not apply (32 C.F.R. 213.10(b)(2)) when states use the Guard as a
police force. See generally Gilligan v. Morgan, 413 U.S. 1 (1973);
Report of the National Advisory Commision on Civil Disorder 274-279
(1968). On the other hand, whenever the National Guard is called into
federal service and thus does become potentially subject to the Posse
Comitatus Act (see 10 U.S.C. 3499, 8499), using the Guard to "execute
th(e) laws" is expressly authorized by statute (10 U.S.C. 3500, 8500)
and, therefore, would not violate the Act.
/16/ The further exception from the Posse Comitatus Act for law
enforcement activity "expressly authorized by the Constitution" has
been a source of considerable ambiguity; and this ambiguity reduces
still further the value of the Act as a "reliable guidepost" (Pet.
App. 24a) of Fourth Amendment values. Compare Sterling v. Constantin,
287 U.S. 378, 399 (1932) ("take Care" clause vests discretion to use
military force), and In re Neagle, 135 U.S. 1, 64 (1890), with
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 644-645 (1952)
(Jackson, J., concurring) (Congress has restricted the President's
authority to determine whether military force may be used); 41 Op.
Att'y Gen. 313, 318-319, 326, 331 (1957) (there is constitutional
authority to use military force that may not be restricted by
Congress) with 9 Op. Att'y Gen. 516, 518-519 (1860) (military force
may only be used in the manner prescribed by Congress); H.R. Conf.
Rep. 97-311, 97th Cong., 1st Sess. 121 (1981) (there is inherent
authority to use military force to protect federal property) with H.R.
Rep. 97-71, 97th Cong., 1st Sess. Pt. 2, at 6 n.3 (1981) (there are no
constitutional exceptions to the Posse Comitatus Act); see also Note,
Honored in the Breech: Presidential Authority to Execute the Laws
with Military Force, 83 Yale L.J. 130, 132-137 (1973).
/17/ There is simply no unifying theme in the disparate express
authorizations of the use of military force. See, e.g., 16 U.S.C.
1861(a) (enforcement of the Fishery Conservation and Management Act);
22 U.S.C. 408 (preventing illegal arms exports); 42 U.S.C. 97
(enforcing quarantines and health laws affecting vessels in port); 50
U.S.C. 220 (preventing unlawful removal of vessels and cargoes
detained under the customs laws). Moreover, it was not until 1982
that the Army's express authority to enforce the laws protecting
members of Congress was extended to include the protection of Cabinet
officials and Justices of the Supreme Court. See 18 U.S.C. 351, as
amended by Pub. L. No. 97-285, Sections 1, 2(a), 96 Stat. 1219.
/18/ 10 U.S.C. 331, 332 and 334 can be traced to the Act of May 2,
1792, ch. 28, Sections 1-3, 1 Stat. 264. That Act established
procedures for calling out the militia when federal assistance was
requested by a State or when federal laws could not be enforced by the
ordinary civil authorities. It was enacted without any suggestion
that the Fourth Amendment, then barely a year old, might inhibit such
uses of the military. See 3 Annals of Cong. 551-555, 574-580 (1792).
The 1792 Act was repealed and reenacted three years later, Act of Feb.
28, 1795, ch. 36, Sections 1-10, 1 Stat. 424-425, at which time
Congress removed the requirement that a judge or Congress certify the
necessity for using military force. 10 U.S.C. 333, in turn, derives
from the Ku Klux Klan Act of 1871, ch. 22, Section 3, 17 Stat. 14.
/19/ The court of appeals in this case missed the point when it
held (Pet. App. 22a n.8) that the 1982 amendments are irrelevant to
the Fourth Amendment analysis because they were not in effect when the
seizures at Wounded Knee occurred. While the provisions are not
themselves directly applicable to this case, they demonstrate the
infinite malleability of the statute, which, on that account, cannot
reasonably be read to embody a constitutional standard.
/20/ Congressman Bethune contended that "(i)n reading some of the
court decisions right on up to and including the decisions of the U.S.
Supreme Court, I found some very strong language which indicates that
many people who have given thoughtful consideration to this issue see
the business of posse comitatus and this particular law that we are
discussing here today as approximating a constitutional right to keep
separate from civilian law enforcement the use of military force, the
use of military might" (127 Cong. Rec. 15669 (1981)).
/21/ Representative Sawyer later asked Conyers "what article of the
Constitution he (wa)s talking about." Conyers replied, "(w)ell, if the
gentleman in his years of legal research and wealth of legal
experience needs a constitutional citation to figure out whether this
is constitutional or not, I am puzzled. Fifty Members have taken the
floor and have suggested that there is a constitutional question.
Every court case has suggested that there is a potential
constitutional infirmity in this whole question of bringing the
military into civilian law enforcement" (127 Cong. Rec. 15686 (1981)).
/22/ Proponents of the 1982 legislation in the House characterized
the Posse Comitatus Act as a source of "confusion" (127 Cong. Rec.
15666 (1981) (Rep. Fish)) and firmly denied that it was intended
broadly to enact "some wonderful basic principle (that) * * * the
military (is) not to become involved in civilian matters" (Posse
Comitatus Hearings 4 (testimony of Rep. Bennett)). Senate sponsors
termed the Act "a considerable stumbling block to effective
surveillance and interdiction of narcotics smugglers" and insisted
that effective law enforcement was not possible "without some change
in the law or a broader interpretation of posse comitatus" (127 Cong.
Rec. 2005 (1981) (Sen. Chiles)).
/23/ In the course of its deliberations, Congress considered a
proposal to give the military the even broader authority to assist
federal agents in making arrests and seizures in narcotics cases. See
H.R. Rep. 97-71, supra, Pt. 1, at 163-164, 203. Although Congress
ultimately refused to confer this additional authority, it did so for
policy reasons, and not because a majority believed that the
Constitution itself prohibited such a broader grant of responsibility
to the military. See, e.g., 127 Cong. Rec. 14979 (1981) (Rep.
Hughes); id. at 14980-14981 (Rep. Dornan); id. at 14982 (Rep.
White); id. at 15659 (Rep. Hughes); id. at 15667 (Rep. Fish); id.
at 15668 (Rep. White); id. at 15672 (Rep. McClory); see also H.R.
Rep. 97-71, supra, Pt. 2, at 11.
/24/ "While the views of subsequent Congresses cannot override the
unmistakable intent of the enacting one, such views are entitled to
significant weight, and particularly so when the precise intent of the
enacting Congress is obscure." Seatrain Shipbuilding Corp. v. Shell
Oil Co., 444 U.S. 572, 596 (1980) (citations omitted). See also
Bennett v. Kentucky Dep't of Educ., 470 U.S. 656, 665 n.3 (1985);
Bell v. New Jersey, 461 U.S. 773, 784 (1983); NLRB v. Bell Aerospace
Co., 416 U.S. 267, 275 (1974). As we show below, pp. 30-39, infra,
the precise intent of the Congress that in 1878 enacted the Posse
Comitatus Act is far from clear (although plainly it was not to
establish a standard of reasonableness under the Fourth Amendment).
/25/ A precursor of the Posse Comitatus Act had been proposed but
not enacted during the second session of the Forty-fourth Congress.
See Siemer & Effron, Military Participation in United States Law
Enforcement Activities Overseas: The Extraterritorial Effect of the
Posse Comitatus Act, 54 St. John's L. Rev. 1, 18-24 (1979); Note, The
Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am.
Crim. L. Rev. 703, 704-709 (1976). Responding to perceived misuse of
the Army to support "carpetbag" governments during the 1876 elections,
the Democratic-controlled House attached a rider to an army
approprations bill designed to prohibit the use of the Army "in
support of the claims, or pretended claim or claims, of any State
government, or officer thereof, in any State, until such government
shall have been duly recognized by Congress." 5 Cong. Rec. 2119, 2152
(1877). After the Republican-controlled Senate refused to agree to
the House bill (id. at 2156-2162, 2215-2216; see also id. at 2241,
2247-2249), President Hayes, newly elected, called a special session
of Congress to enact an appropriation for the Army. 6 Cong. Rec. 50
(1877). Because steps to withdraw federal troops from the South had
in the meantime been undertaken (see Siemer & Effron, supra, 54 St.
John's L. Rev. at 20 & n.88), an Army appropriation was passed during
the special session without a renewed attempt to attach prohibitions
on domestic use of the military. Act of Nov. 21, 1877, ch. 1, 20
Stat. 1.
/26/ Kimmel defended the amendment because he believed that it was
constitutionally improper to use the Army to execute the laws -- but
not, as the court of appeals supposed in the present case, because the
Army is a military force but rather because it is a federal force.
See 7 Cong. Rec. 3579-3581, 3583-3584 (1878). Citing "the grouping of
the powers conferred on Congress" by Article I, Kimmel drew a line
between the "war power" and the power "to execute the laws, suppress
insurrections, and repel invasions" (id. at 3581). Having drawn this
distinction, Kimmel argued (ibid.):
These two powers are as distinct as are the means to be employed
for the exercise of them, the Army for defense against external
foes, the militia for the suppression of internal resistance,
the Army to be created by Congress, because war is a subject of
national jurisdiction only; the militia to be created jointly
by Congress and the States, because the execution of the laws of
the Union and the suppression of insurrections may involve
questions of disputed jurisdiction.
Kimmel thereafter confirmed that his objection to the use of the
Army in law enforcement lay in its federal -- and not military --
character. He argued (id. at 3583) that it is clear that "not only"
did the Framers "not intend that the standing Army * * * should be
used for the execution of the laws * * * but * * * also that they did
intend that the local militia should be the only reliance for the
suppression of domestic violence." Kimmel also "demand(ed) * * * that,
in obedience to the plain letter of the Constitution, the militia of
the country be organized * * * that * * * it may be employed when
necessary for the execution of the law" (ibid.). Supporters of
Kimmel's proposed amendment likewise objected to the use of the Army
in domestic disturbances because it was a federal force -- not because
it involved military force. See, e.g., id. at 3538 (Rep. Hewitt);
id. at 3679 (Rep. Wright); id. at 3684 (Rep. Cox).
/27/ Indeed, the Air Force was only added to the Act when the
military laws of the United States were codified. Pub. L. No.
84-1028, Section 18(a), 70A Stat. 626. This addition apparently was
based on the savings clause in the National Security Act of 1947, ch.
343, Section 305(a), 61 Stat. 508, in which laws applicable to the
Army were made applicable to the newly created Air Force. Otherwise,
in the 1956 codification the only changes made in the Posse Comitatus
Act were "to conform to the style and terminology used in title 18,"
within which, Congress determined, the Posse Comitatus Act "more
properly" belonged. H.R. Rep. 970, 84th Cong., 1st Sess. 727 (1955);
S. Rep. 2484, 84th Cong., 2d Sess. 736 (1956).
/28/ In addition, Knott's amendment barred use of any of the money
appropriated by the 1878 Act "to pay any of the expenses incurred in
the employment of any troops in violation" of this provision and
established criminal penalties for violation of the Act. 7 Cong. Rec.
3845 (1878).
/29/ The version of the bill offered in the Senate differed in two
principal ways from the House version. First, the Senate sponsors
deleted the phrase "under the pretext," presumably in order to defuse
the more overtly partisan flavor of the House rider. Second, the
Senate amendment sanctioned the use of the Army for law enforcement
whenever "authorized by the Constitution" -- in recognition of the
fact that Congress "cannot limit the power of the President as
authorized and granted by the Constitution" (7 Cong. Rec. 4240 (1878)
(Sen. Windom)).
/30/ Two Senate supporters of the Posse Comitatus Act confirmed in
yet another way that the Act was not designed to separate the military
from all law enforcement functions. Senators Merrimon and Hill
contended that it was improper for the Army to execute the law in the
"ordinary" (7 Cong. Rec. 4243 (1878) (Sen. Merrimon)) or "proper" (id.
at 4247 (Sen. Hill)) sense. These Senators equated "executing the
laws" with executing the "processes of the courts," and argued that
the latter is always a function of civil officers. The Army's role,
on the other hand, was to "put() down" "insurrections" -- a function
that the two Senators broadly defined as "opposition to the execution
of the law when that opposition is too great for the civil arm to
suppress." Ibid. (Sen. Hill); see also id. at 4243-4245 (Sen.
Merrimon).
/31/ Even with this limited meaning, the Posse Comitatus rider
engendered significant opposition in the Senate. See 7 Cong. Rec.
4241 (1878) (Sen. Blaine); ibid. (Sen. Windom); ibid. (Sen.
McMillan); id. at 4241-4242 (Sen. Edmunds); id. at 4242 (Sen. Hoar);
id. at 4296 (Sen. Edmunds); id. at 4297 (Sen. Kirkwood); id. at
4297-4298 (Sen. Matthews); and id. at 4301 (Sen. Christiancy). In
response to this criticism, the Senate sponsors of the Posse Comitatus
Act strove to minimize its significance. Senator Kernan denied that
the proposed legislation would make unlawful anything "which by fair
implication" was an authorized use of the Army, and suggested that the
word "expressly" was superfluous. Id. at 4242, 4246. Similarly,
Senator Bayard denied "that there is a diminution of any power under
the law or the Constitution by this proposed section." Id. at 4296.
He further agreed to a proposal to strike the word "expressly,"
describing it as "perhaps too strong an expression" and conceding that
"if the Army were necessarily employed it would be a power lawfully
exercised." Ibid. Bayard, moreover, emphasized that he viewed the
Posse Comitatus Act as merely the statement of a "wholesome" "truism"
that was required to placate the House. Ibid.
/32/ See also Amendment II ("(a) well regulated Militia" is
"necessary to the security of a free State").
/33/ As Story put the matter in his Commentaries on the
Constitut-on Section 1181 (1833):
Cases may occur, and indeed are contemplated by the constitution
itself to occur, in which military force may be indispensable to
enforce the laws, or to suppress domestic insurrections. Where
the resistance is confined to a few insurgents, the suppression
may be ordinarily and safely confided to the militia. But where
it is extensive, * * * it may be important and even necessary to
employ regular troops, as at once the most effective, and the
most economical force.
See also In re Debs, 158 U.S. 564, 582 (1895) ("the army of the
Nation, and all of its militia, are at the service of the Nation to
compel obedience to its laws").